National Australia Bank Ltd v Craig Trevor Smith [2012] NSWSC 1121

National Australia Bank Ltd v Craig Trevor Smith [2012] NSWSC 1121

Discovery had to be determined by reference to the issues raised in the First and Second Defendants' Cross-Claim, but the application was late and the categories sought were too broad. Documents relevant to the alleged representations and finance applications were limited principally to the period from May 2004 to 24 January 2006, and documents concerning the Provenzale Group were limited to the companies owning the business rather than Claudio or Gina Provenzale personally. Categories concerning other finance applications, document retention procedures and unrelated disputes were not relevant to facts in issue and were refused.

Jurisdiction
Australia
Judgment Date
16 October 2012
Procedural Posture
Interlocutory Application / Notice of Motion by the First and Second Defendants for Discovery Against the Plaintiff and GHS Financial Services Pty Ltd
Outcome
Discovery is to be provided by the First and Second Cross-Defendants as indicated in paragraphs 32 to 43 of the judgment. The Motion is otherwise dismissed.
Legal Topics
['discovery' 'relevance to Facts in Issue' 'late Application for Discovery' 'mortgage and Guarantees' 'possession of Land' 'misleading and Deceptive Conduct' 'unconscionable Conduct']
['civil Procedure' 'banking and Finance'] ['discovery' 'relevance to Facts in Issue' 'late Application for Discovery' 'mortgage and Guarantees' 'possession of Land' 'misleading and Deceptive Conduct' 'unconscionable Conduct']

Case Brief

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Procedural Posture

Interlocutory Application / Notice of Motion by the First and Second Defendants for Discovery Against the Plaintiff and GHS Financial Services Pty Ltd

Legal Issues

  1. 1 ['Whether the First and Second Defendants should obtain discovery in the categories sought against National Australia Bank Ltd and GHS Financial Services Pty Ltd.' 'Whether the breadth and timing of the discovery application made the proposed discovery unfair, oppressive or inconsistent with s 56 Civil Procedure Act 2005.' 'Whether particular categories, including documents about other finance applications, the Provenzales personally, document retention procedures and alleged lost documents, were relevant to facts in issue.']

Ratio Decidendi

Discovery had to be determined by reference to the issues raised in the First and Second Defendants' Cross-Claim, but the application was late and the categories sought were too broad. Documents relevant to the alleged representations and finance applications were limited principally to the period from May 2004 to 24 January 2006, and documents concerning the Provenzale Group were limited to the companies owning the business rather than Claudio or Gina Provenzale personally. Categories concerning other finance applications, document retention procedures and unrelated disputes were not relevant to facts in issue and were refused.

Court Disposition

Discovery is to be provided by the First and Second Cross-Defendants as indicated in paragraphs 32 to 43 of the judgment. The Motion is otherwise dismissed.

Orders

  • ['National Australia Bank Ltd is to provide discovery for categories 1 to 5, if further documents exist, limited from May 2004 to 24 January 2006.' 'Discovery against National Australia Bank Ltd in category 6 is refused.' 'Discovery for National Australia Bank Ltd categories 7 to 11 and GHS Financial Services Pty...